PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 95-8111
________________________
D.C. Docket No. 1:91-CV-1107-MHS
J. JEROME HARRIS, Ph.D.,
Plaintiff-Counter-Defendant-
Appellee-Cross-Appellant,
versus
BOARD OF EDUCATION OF THE CITY OF ATLANTA; A School District
of the State of Georgia,
Defendant-Counter-Claimant,
JOSEPH G. MARTIN, JR., Individually and in his Official
Capacity as President of the Board of Education of the City of
Atlanta; MARY ANNE BELLINGER, REV., Individually and in her
Official Capacity as Vice-President of the Board of Education
of the City of Atlanta; JOHN F. ELGER, Individually and in his
Official Capacity as a Member of the Board of Education of the
City of Atlanta; CAROLYN D. YANCEY, Individually and in her
Official Capacity as a Member of the Board of Education of the
City of Atlanta; D.F. GLOVER, Dr., Individually and in his
Official Capacity as a member of the Board of Education of the
City of Atlanta; ROBERT WAYMER, Individually and in his
Official Capacity as a Member of the Board of Education of the
City of Atlanta; MIDGE SWEET, Individually and in her Official
Capacity as a member of the Board of Education of the City of
Atlanta; INA EVANS, Individually and in her Official Capacity
as a Member of the Board of Education of the City of Atlanta;
PRESTON W. WILLIAMS, Dr., Individually and in his Official
Capacity as a Member of the Board of Education of the City of
Atlanta,
Defendants-Counter-Claimants-
Appellants-Cross-Appellees.
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Appeals from the United States District Court
for the Northern District of Georgia
________________________
(January 23, 1997)
Before HATCHETT, Chief Judge, HENDERSON, Senior Circuit Judge, and
MILLS*, District Judge.
PER CURIAM:
J. Jerome Harris filed this civil rights action against the
Board of Education of the City of Atlanta ("Board") and the
individual members thereof claiming that he was improperly relieved
of his duties as Superintendent of the Atlanta Public Schools prior
to the expiration of his employment contract with that governmental
body. The parties eventually filed cross-motions for summary
judgment. The United States District Court for the Northern
District of Georgia denied Harris's motion and granted the
defendants' motion in part and denied it in part. The Board
members in their individual capacities filed this appeal from the
district court's rejection of their qualified immunity defense in
part, and the parties requested the court to exercise its pendent
appellate jurisdiction over other issues decided by the district
court. For the reasons that follow, we reverse the district
court's denial of the individual Board members' motion for summary
judgment on qualified immunity grounds and dismiss the remaining
appeal without reaching the merits.
Facts.
In 1987, the Board entered into a contract with Harris to
serve as Superintendent of the Atlanta Public Schools for a four-
_____________________________________
*Honorable Richard Mills, U.S. District Judge for the Central
District of Illinois, sitting by designation.
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year period running from August 1, 1988 to July 31, 1992. After
Harris assumed his duties as Superintendent, his relations with the
Board apparently deteriorated. Following several weeks of private
discussions among its members, the Board adopted a resolution on
July 9, 1990, relieving Harris of his duties as Superintendent,
concluding that his further service was not in the best interests
of the school system. The Board voted, however, to continue paying
Harris's salary and other benefits as provided by his employment
agreement with the Board. Harris did not request a hearing before
the Board or seek any administrative or judicial relief which might
have been available to him under Georgia law.
In April 1991, Harris filed the present action against the
Board and its members in both their official and individual
capacities. In a five-count complaint, the plaintiff alleged the
deprivation of property rights without due process (Count I); the
deprivation of his liberty interest in reputation without due
process (Count II); a violation of his First Amendment rights
(Count III); a state cause of action for breach of contract and
violation of the Georgia Fair Dismissal Act (Count IV); and an
entitlement to punitive damages (Count V). The defendants answered
the complaint, denying its essential allegations and asserting a
number of defenses. Specifically, the Board members in their
individual capacities maintained that they were entitled to
qualified immunity on all of Harris's claims against them.
Harris filed a motion for partial summary judgment and the
defendants filed a motion for summary judgment on all counts of the
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complaint. On September 16, 1994, the district court entered an
order denying Harris's motion and granting in part and denying in
part the defendants' motion. The court held that the defendants
were entitled to summary judgment on plaintiff's deprivation of
property without due process, First Amendment and Georgia Fair
Dismissal Act claims but not for deprivation of liberty interest or
breach of contract. In addition, the court granted summary
judgment in favor of the individual defendants for qualified
immunity on all of Harris's constitutional claims.
Harris subsequently filed a motion seeking certification of
that order for immediate review pursuant to 28 U.S.C. § 1292(b).
The district court denied that motion but vacated some of the
rulings previously made in its September 16, 1994 order. The court
concluded that the defendants were not entitled to summary judgment
for deprivation of property without due process and the state
action based on the Georgia Fair Dismissal Act. In addition, the
court reversed itself and held that the individual Board members
were not entitled to qualified immunity for the deprivation of a
property right. The Board members filed this appeal from the
rejection of their qualified immunity defense for deprivation of
property. The defendants also requested the court to exercise its
pendent appellate jurisdiction over the district court's denial of
their motion for summary judgment on other issues. In turn, Harris
filed a cross-appeal seeking review of the district court's partial
grant of summary judgment to the defendants.
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Jurisdictional Issues.
Because no final order has been entered in this case, the
scope of this appeal is very narrow. The district court's
rejection in part of the individual Board members' qualified
immunity defense is a final decision under the collateral order
doctrine over which this Court has jurisdiction pursuant to 28
U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,
86 L.Ed.2d 411 (1985); Heggs v. Grant, 73 F.3d 317 (11th Cir.
1996). As stated earlier, the defendants also seek to have this
court exercise its pendent appellate jurisdiction over the district
court's denial of their motion for summary judgment on other
grounds in the case. See, e.g., Kelly v. Curtis, 21 F.3d 1544,
1550 (11th Cir. 1994).
The Supreme Court recently explicitly held, however, that
pendent appellate jurisdiction is limited to questions that are
"inextricably interwoven" with an issue properly before the
appellate court. See Swint v. Chambers County Commission, --- U.S.
---, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60, 75 (1995). In that
case, two owners, an employee and a patron of a nightclub raided by
police sued the sheriff and several other law enforcement
officials, the City of Wadley, Alabama ("City") and the Chambers
County, Alabama, Commission ("County") for civil rights violations.
The defendants filed motions for summary judgment, with the
individual defendants asserting that they were entitled to
qualified immunity on the plaintiffs' causes of action. The
district court granted the motions in part and denied them in part.
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The individual defendants appealed the denial of their
qualified immunity defense in part, and the City and the County
asked the court to exercise pendent appellate jurisdiction over
their appeals from the denial in part of their motions for summary
judgment on the merits. A panel of this court affirmed the
district court's rejection of the individual defendants' qualified
immunity defense in part and reversed the court in part. Because
of a gap in the evidentiary record, the court declined to exercise
pendent jurisdiction over the City's appeal. With respect to the
County's appeal, however, the court concluded that it had pendent
appellate jurisdiction over that appeal and reversed the district
court's denial of the County's motion for summary judgment. See
Swint v. City of Wadley, Alabama , 5 F.3d 1435 (11th Cir. 1993),
modified, 11 F.3d 1030 (1994). The plaintiffs petitioned the
Supreme Court of the United States for review, which reversed this
court's judgment on the County's appeal. According to the Court,
the County's appeal did "not fit within the 'collateral order'
doctrine, nor is there 'pendent party' appellate authority to take
up the [County's] case." Swint, 514 U.S. at ---, 115 S.Ct. at
1206, 131 L.Ed.2d at 67. On remand, this court summarily concluded
that "[t]here is no pendent party appellate jurisdiction." Swint
v. City of Wadley, Alabama, 51 F.3d 988, 1002 (11th Cir. 1995).
In more recent decisions, the court has also concluded that
"we have no pendent party appellate jurisdiction." See Pickens v.
Hollowell, 59 F.3d 1203, 1208 (11th Cir. 1995); see also Haney v.
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City of Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995), cert. denied,
--- U.S. ---, 116 S.Ct. 1826, 134 L.Ed.2d 931 (1996). For that
reason, we lack jurisdiction to review the Board's appeal on any
issue. Following the Supreme Court's decision in Swint, another
panel of this court dismissed Harris's cross-appeal for lack of
jurisdiction in an order entered January 16, 1996.
We have concluded that we may resolve the qualified immunity
issue without reaching the merits of the remaining questions raised
by the individual defendants. Those issues are not, therefore,
sufficiently interwoven with qualified immunity to fall within the
court's pendent appellate jurisdiction. Consequently, the only
controversy before us is whether the district court properly
disallowed qualified immunity to the defendants for deprivation of
property without due process. The merits of Harris's federal
claims for deprivation of property and of liberty interest in
reputation without due process and his state law causes of action
for breach of contract and for violation of the Georgia Fair
Dismissal Act remain pending in the district court.
Standard of Review.
We review a district court's grant or denial of a motion for
summary judgment de novo. Forbus v. Sears Roebuck & Co., 30 F.3d
1402, 1404 (11th Cir. 1994), cert. denied, --- U.S. ---, 115 S.Ct.
906, 130 L.Ed.2d 788 (1995). A public official's entitlement to
qualified immunity presents a purely legal question, subject to de
novo review. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019,
1023, 127 L.Ed.2d 344 (1994); Heggs v. Grant, 73 F.3d at 320.
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Qualified Immunity.
In all but the most exceptional cases, qualified immunity
protects government officials performing discretionary functions
from the burdens of civil trials and from liability for damages.
Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149 (11th Cir.
1994)(en banc). Public officials are entitled to qualified
immunity from "liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396
(1982). Therefore, in order to succeed, the plaintiff in a civil
rights action has the burden of proving that a reasonable public
official could not have believed that his or her actions were
lawful in light of clearly established law. Johnson v. Clifton, 74
F.3d 1087, 1091 (11th Cir. 1996).
In its initial ruling, the district court held that the
defendants were entitled to qualified immunity on the deprivation
of property cause of action and granted summary judgment thereon.
Relying on this court's then recent decision in McKinney v. Pate,
20 F.3d 1550 (11th Cir. 1994)(en banc), the court held that Harris
had not suffered a procedural due process violation because the
State of Georgia provides adequate remedial measures for addressing
any deficiency in the procedure by which Harris was terminated from
his employment. Moreover, because Harris had not charged the
violation of a constitutional right, the Board members individually
were entitled to qualified immunity.
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On reconsideration, the district court distinguished McKinney
because the plaintiff in that case had received a pretermination
hearing. The court found that there was a genuine issue of fact as
to whether Harris received full compensation under the terms of his
contract. In the court's view, if he was not fully compensated,
Harris's complaint would state a claim for deprivation of property
without due process. The court did not reach or discuss the
adequacy of Georgia's post-deprivation remedies. The court also
concluded that the Board members were not entitled to qualified
immunity in this instance because the law was clear that a public
employee with a property interest in his employment could not be
deprived of that property without notice and a hearing prior to
termination.
In McKinney, this court held that a governmental deprivation
of a public employee's state-created property interests does not
state a claim for violation of substantive due process rights. 20
F.3d at 1556-60. Rather, such a loss at most states a claim for
violation of procedural due process protections. Id. at 1560.
Even when a state procedure is inadequate, however, "no procedural
due process right has been violated unless and until the state
fails to remedy that inadequacy." Id. Therefore, a plaintiff does
not state a claim cognizable under 42 U.S.C. § 1983 unless and
until the state refuses to make available a means to remedy the
alleged procedural deprivation. Id. at 1563.
The individual defendants in this case contend that because
Harris has not pursued the post-termination remedies available to
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him under Georgia law, he has not alleged the violation of any
constitutional right, and they are entitled to judgment as a matter
of law. On the other hand, Harris argues that the defendants
structured his termination in such a way as to deprive him of any
state remedy and that he clearly has no adequate remedy under
Georgia law. While the district court must eventually address this
question to determine whether Harris had been deprived of property
without due process, we need not decide it in order to reach the
issue of whether the individual defendants are entitled to
qualified immunity. We turn our attention to that issue.
The district court's statement of the qualified immunity issue
in this case was too abstract. As this court has observed,
"[g]eneral propositions have little to do with the concept of
qualified immunity." Muhammad v. Wainwright, 839 F.2d 1422, 1424
(11th Cir. 1987). The law which must be clearly established is
that governing the specific factual situation confronting the
government official in the particular case. See Lassiter, 28 F.3d
at 1150. Also, the conduct of a government official is judged
against the law and facts at the time the defendant acted, not by
hindsight based on later events. Id. Therefore, the question for
the qualified immunity analysis in this case is whether a
reasonable Board member on July 9, 1990 would have known that
relieving Harris of his duties as Superintendent while continuing
to pay him his salary and benefits violated clearly established
law.
In fact, it appears that the law was clearly established that
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the Board acted properly. The courts which had considered the
question at that time were in agreement that a public official has
a constitutionally protected property interest only in the economic
benefits of his position and does not have any right to actually
hold the position and execute the duties of the office. See
Royster v. Board of Trustees of Anderson County School District ,
774 F.2d 618 (4th Cir. 1985)(superintendent had no constitutionally
protected right to non-economic benefits of position); Rodgers v.
Georgia Tech Athletic Association, 166 Ga.App. 156, 303 S.E.2d 467,
470 (1983)(employee has no property right to actually hold and
execute duties of office for which he is employed). This court has
noted in a similar case that "any rights concerning [the
employee's] teaching and coaching belonged to the Board, who
presumably was free to waive such rights." Hardiman v. Jefferson
County Board of Education, 709 F.2d 635, 638 n.2 (11th Cir. 1983).
The Fifth Circuit Court of Appeals reached the same conclusion in
a case decided shortly after the events under consideration here.
See Kinsey v. Salado Independent School District, 950 F.2d 988 (5th
Cir. 1992).
Because the members of the Board could not have reasonably
believed that their actions in relieving Harris of his
responsibilities while continuing to pay him the economic benefits
of the position were illegal, the Board members as individuals are
entitled to qualified immunity on his charge of a deprivation of a
property right. Accordingly, the district court's order denying
the Board members' motion for summary judgment on the basis of
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qualified immunity is REVERSED. All other issues before us are
hereby DISMISSED for lack of appellate jurisdiction.
REVERSED in part and DISMISSED in part.
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